Hibnick v. Google Inc.

Filing 42

Declaration of Gary E. Mason in Support of Preliminary Approval of Class Action Settlement filed byJohn Case, Barry Feldman, Lauren Maytin, Mark Neyer, Andranik Souvalian, Katherine C Wagner, Rochelle Williams. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Related document(s) 41 ) (Mason, Gary) (Filed on 9/3/2010)

Hibnick v. Google Inc.

Doc. 42

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Gary E. Mason (pro hac vice) [e-mail] Donna F. Solen (pro hac vice) [e-mail] MASON LLP 1625 Massachusetts Ave., NW Washington, DC 20036 Telephone: [phone] Facsimile: [phone] Michael F. Ram (SBN 104805) [e-mail] RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] William B. Rubenstein (SB #235312) [e-mail] 1545 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs and the Proposed Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE GOOGLE BUZZ USER PRIVACY LITIGATION This Pleading Relates To: ALL CASES Case No. 5:10-CV-00672-JW DECLARATION OF GARY E. MASON IN SUPPORT OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Date: December 20, 2010 Time: 9:00 a.m. Place: Courtroom 8, 4th Floor [Hon. James Ware]

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Declaration of Gary E. Mason ISO Preliminary Approval of Class Action Settlement
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I, Gary E. Mason, declare as follows: 1. I am a partner at the law firm of Mason LLP and a member in good standing of

the bars of the State of New York, the State of Maryland, and the District of Colombia, and I am admitted pro hac vice in this matter. I make this declaration based upon personal knowledge and with respect to documents, upon due inquiry. 2. Plaintiff Eva Hibnick filed the initial class action complaint on February 17, 2010

against Google, Inc. ("Google"). Additional class action complaints were filed against Google on March 3, 2010, April 5, 2010, May 27, 2010, and June 7, 2010. Plaintiffs in each of these actions asserted claims against Google alleging violations of the (i) the Electronic Communications Privacy Act, 18 U.S.C. §2510 et seq; (ii) the Stored Communications Act, 18 U.S.C. §2701 et seq; (iii) the Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq; (iv) the common law tort of Public Disclosure of Private Facts as recognized by California common law; and (v) the California Unfair Competition Law, California Business & Professions Code §17200. 3. On June 30, 2010, this Court granted Plaintiff Eva Hibnick's motion to

consolidate the cases and to appoint interim lead counsel and liaison counsel. 4. 5. Plaintiffs filed an amended consolidated complaint on July 29, 2010. Plaintiffs' counsel conducted extensive settlement negotiations with counsel for

Google, including multiple in-person meetings. The first such meeting was held at Google's counsel's office in San Francisco on April 21, 2010. At that meeting, Google's Vice President for Product Management, whose responsibilities included the launch of Buzz, spent several hours discussing the program with Class Counsel. He explained Buzz's operation and responded to questions posed by Class Counsel present at the meeting and available through teleconference, enabling Class Counsel to better understand the facts about how Buzz works, how it was -25:10-cv-00672-JW

Declaration of Gary E. Mason ISO Preliminary Approval of Class Action Settlement

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launched, and what changes had already been made; simultaneously, Class Counsel's questioning enabled Google to better appreciate the concerns presented in the complaints. At this meeting, Google's counsel also made an extended presentation of the company's legal defenses to the allegations of the complaints, characterizing the presentation as essentially showing Class Counsel what the content of Google's motion to dismiss would be. Class Counsel debated these legal issues with Google's counsel for several hours. Following a break for lunch, the parties spent the remainder of their time together discussing the issues in the case and exploring the possibilities of settlement. parties agreeing to a formal mediation. 6. Prior to the agreed upon mediation, Google provided further factual material to These discussions ultimately culminated with the

Class Counsel to enable Counsel to further investigate the factual aspects of the complaints, supplementing the information Google had conveyed to Class Counsel at the April meeting. Based on the information obtained from Google and through thorough independent investigation of the facts and law, Class Counsel produced for Google and the Mediator a 73-page Mediation Statement (with exhibits) that included a 31-page legal brief. This brief outlined the plaintiffs' affirmative legal argument, while responding to the legal presentation that Google's counsel had made at the April meeting; it represented Class Counsel's response to Google's orally-presented arguments for dismissal. Google similarly produced a Mediation Statement for the Mediator, some of which was shared with Class Counsel. 7. On June 2, 2010, the parties met for the formal mediation session at the JAMS Hon. Fern Smith, a retired federal district court judge with

office in San Francisco, CA.

extensive class action experience, presided over the session. It lasted for approximately 14 hours. At the outset of the mediation session, the Mediator approved Class Counsel's request to -35:10-cv-00672-JW

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make a formal presentation of their briefs and arguments, as Google had made to Class Counsel during the April meeting. Class Counsel Rubenstein presented the plaintiffs' case to the

Mediator and Google's counsel for the first portion of the mediation session. The parties spent the remainder of the day discussing the factual and legal issues in the case and the bases for resolution of it. Very late that evening, the mediation proved successful, resulting in a term sheet and ultimately in the formal Settlement Agreement described below. 8. In accordance with the terms of the June 2, 2010 term sheet, Google provided Plaintiffs' counsel with thousands of pages of documents, including all consumer feedback that it had received about the Buzz program, and declarations by Google executives concerning Buzz usage statistics, product design, and the user complaint process. 9. Attached hereto as Exhibits 1 - 9 are the Firm Resumes of each of the law firms representing Plaintiffs in this Action. 10. Class Counsel intend to petition for a fee constituting 25% of the Common Fund. I declare under penalty of perjury under the laws of the District of Columbia that the forgoing is true and correct and to the best of my knowledge. Executed on this 3rd day of September, 2010.

/s/ Gary E. Mason Gary E. Mason (pro hac vice) MASON LLP 1625 Massachusetts Ave., NW Suite 605 Washington, DC 20036 Phone: [phone] Fax: [phone] Email: [e-mail]

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Declaration of Gary E. Mason ISO Preliminary Approval of Class Action Settlement